Complainant

Respondent

Parties

Timmy  McCarthy

Cork City Council

Representatives

Thomas Erbsloh, Traveller Visibility Group, Cork

 Lisa Horgan, Administrative Officer

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00042646-001

16/12/2020

On 16 December 2020, the Traveller Visibility Group submitted a complaint of discrimination on behalf of the Complainant. The complaint form outlined that that the Complainant was a member of the Travelling community and had been discriminated against in Accommodation. The case is conjoined with ADJ 31984 The Complainants are husband and wife.

The ES1 form lodged was dated 14 November 2020 and cited the first incident of discrimination as having occurred on 4 November 2020.

The Respondent is a Public Body and City Council. They have responsibility for allocation of Social Housing. The Council did not provide an ES2 form or any other document in response to the ES1.

The case came for hearing on June 10. 2022 as provided for in Section 25(1) of the Act. An earlier remote hearing had been offered but refused by the complainant who wanted a face to hearing.

Both Parties were represented and compiled submissions. The complainant attended with her husband in a conjoined case with ADJ 31985 and was represented by Thomas Eblosh.

The Respondent was represented by Lisa Horgan, Administrative Assistant for the City Council and was accompanied by two witnesses.

I made a request for further documents post hearing from both party’s post hearing. I had cause to follow up in seeking that information necessary for my investigation.

The respondent made reference during the hearing to a commissioned Equality Review undertaken under the auspices of UCC and as a result of the direction in ADJ 18849. I requested sight of this document as I had been the Adjudicator who compiled that decision.

At time of writing, I had received many assurances that the review which was to ensure Equality proofing of CBL would be shared following approval by the City Council. I have decided to advance through to my decision without waiting further for this document, but understandably, I have to draw inferences from the failure to release this document, whose genesis emerged from the WRC in July 2020.

The complaint of discrimination centred on the circumstances surrounding a bid to access social housing through the Respondents “Choice Based Letting “system (CBL) in early October 2020.

The complaint is based on an unsuccessful bid for a Bungalow in October 2020, which was allocated to another family. The Complainant learned about this on November 4, 2020.

The Complainant outlined that she is a member of a Traveller family of two adults and 3 underage children who are actively seeking housing from a mobile home on a halting site. This is a subset of the broader family size. The complainant in the conjoined case of ADJ 31985 is her husband. Mr Eblosh for the Complainant submitted that medical issues and disabilities relevant to the Family ought to have prioritised her application for housing in a bungalow setting but did not.

He submitted that the complainant is currently resident in Spring Lane halting site for 30 years. The accommodation was never meant to endure for 30 years and is totally unsustainable. The family has actively pursued applications for housing. The issue of their longevity on the housing list is in dispute with the Respondent. This was eventually rectified in June 2022 following recommendations made by the Children’s Ombudsman.

At the time of bidding in October 2020, the family were recorded as having a 9-year record on the housing list rather than an actual “at least 22 years “Many attempts were made by the family to reconcile the respondent records, but this had not taken effect by the timeframe of the October 2020 bidding.

The family mobile home was damaged in Storm Ellen and rendered unusable in August 2020. this rendered the family homeless.

The complaint form concluded that “…. The bungalow was allocated to a non-Traveller family, considerably younger than us, who can only have been on the housing list for a considerable shorter period than us. The failure to considers us for this allocation, despite our family’s circumstances and our years on the housing list, along with the failure to review those years, can only be explained, that we are being discriminated by cork County Council as a Traveller family seeking housing. we are not properly accommodated and the discrimination against us I am continuing “

The Complainant attached an unsigned ES1 form (conjoined with the complainant in ADJ 31985) dated 14 November 2020 which tabled 8 questions of the Respondent

1 Request for a record of representations made by the respondent in respect of the bid for the bungalow

2Request for evidence in how the medical information submitted was handled by the respondent

3 Any information on how the request for “credit time review “that is years on the housing list was handled.

4 Information on whether “homeless state “had been considered

5 information on housing list status at time of bid and subsequently

6 How the Cork City Council allocation scheme was applied to the bid

7 Information on how the CBL scheme interfaced with the Housing Allocation staff team

8 information on “Equality Impact Assessment of CBL under Public sector duty “.

There was no response to this document from the Respondent

Mr Eblosh for the Complainant outlined that the Complainant had been 30 years a resident on what he referred to as a “temporary halting site “at Spring Lane. the Complainant was mother to 8 living children and a 9th child had passed away. Two of her sons were married.

Mr Eblosh detailed that on foot of a child with a special medical needs and ADHD and her husband’s lumbar and other medical conditions, that she had sought a single-story bungalow as housing. She had made initial application to a named Social Worker, since retired.

He submitted that Storm Ellen had rocked the family temporary home in August 2020. By November,2020, the family was homeless and had not been facilitated with replacement accommodation.

The complainant became aware of the bungalow at the centre of the CBL bid on 30 September 2020, through the Traveller Accommodation Unit at the Council. It was common knowledge that if a property was shuttered, it meant that it was a vacant council property.

The Complainants representative emphasised that the complainant was seeking proper bungalow accommodation in a traveller group housing scheme by the Respondent. He pointed to the discrepancy in records on the CBL scheme which depicted the complainant’s family as having 8 years waiting list history when in fact, he said he could prove that the complainant had a minimum of 22 years on that list. The “credit review “of the years failed to incorporate the correct record consistent with the timing of the CBL bid.

He submitted that the successful tenant at CBL was not a Traveller. The bidding period lasted one week, and the Complainant understood that she would score the bungalow in terms of her seniority and traveller status on the list.

He contended that the comparator in the case were other people who have better literacy skills, without Traveller status as CBL, which was modelled on an internet shopping system amounted to a communication challenge for his client.

He outlined that the Complainant had been discriminated against in her bid for housing and this had endured to date

Evidence of the Complainant:

The Complainant outlined that he had applied for a social house via the CBL bid but had not qualified for it. The objective for the family was to obtain a bungalow.

He understood that he was a long-term participant on the housing list. He stated that he had no been medically assessed by the Respondent. He gave evidence of his medical conditions.

During cross examination, The Complainant accepted that he was asked to input into an assessment of his health prior to April 2021.

He accepted that he had been offered a house in May 2020.

Ms Louise Harrington, Advocate and Community Worker

Ms Harrington had 8 years of experience of dealing with overcrowding and health and safety issues at Spring Lane. She submitted there a structural disconnect in how Travellers were addressed. She currently supported 44 families on the site, where the Complainant currently resides.

She recalled meeting with the complainant’s wife, along with Ms Dennehy and Mr Ahern (Respondent witnesses) in September 2019. At that time, she had requested that the credit years be reconciled in the complainant’s case to the actual 21 years. Nothing happened and the bid for the bungalow came and went on the wrong records. The family heard the outcome on the grapevine but did not appeal.

A parallel complaint was submitted to the Ombudsman on the treatment of Travellers on Spring Lane. I requested sight of this document and appreciated reading the document.

Ms Harrington stated that receipt and delivery of post at the halting site was irregular, and the complainant’s wife had not received the notification of the credit review on income in December 2020. She had handed in a completed assessment of need form on 24 March 2021. The credit review had finally concluded accurately and reflective of 1998 during the week of the hearing.

She confirmed that the complainant had received inconsistent interactions from the Respondent. CBL advertised weekly. The Traveller group were years on the waiting list and highly reliant on advocacy and representation in pursuance of social housing. HAP was not a viable option as it was inaccessible due to the need for references

During cross examination, Ms Harrington confirmed that client feedback had advised around the difficulties surrounding standard post causing post to be hand delivered on occasion.

In clarification, Ms Harrington advised that there was no registered mail practice on the halting site. she was aware of the CBL criteria but there was no formal notification to bidders of the successful candidate at bidding.

Ms Harrington spent some time referring to the emails regarding changing status on credit reviews. She detailed an extremely focussed system of advocacy on behalf of the complainant and his  family.

Evidence of Michael Mc Carthy, Complainants son

Mr Mc Carthy recalled engaging with the online bidding system in an attempt to secure the allocation of the bungalow for his family. He noted that the system details for his family were inaccurate. There was no mention of his brothers  medical condition . The detail on his sister was also inaccurate.

He observed that the record of 8 years on the waiting list was recorded on the bottom of the screen. He clarified that credit was rectified sometime after the bid.

During cross examination, he reaffirmed that he had not seen a record of how long his family were on the housing list

In clarification, he confirmed that there was no receipt printed to accompany the bid and no facility in which to correct the credit record.

In closing, Mr Eblosh accepted that the family who were allocated the 3-bed bungalow were of Traveller origin. He had been given to understand that the identity was a lone parent or a settled family

Mr Eblosh forwarded details of an ongoing Ombudsman Investigation into the continued operation of the halting site, Spring Lane.

He submitted that the Councils management of the credit review had been injurious to the complainant and his  family as the Respondent had failed to correct the inaccurate details on file on tenure, family composition and medical needs thus raising a prima facie case of discrimination.

The Respondent operates a City Council from where Social Housing is allocated. The Respondent denied discrimination against the Complainant. Ms Horgan, the Respondent Representative explained that Housing was allocated through the Traveller Accommodation Unit through either a caravan loan or the housing scheme. These schemes had a high advocacy input. Housing Assistance Payments and Rental Assistant schemes were also available.

The Respondent had equipped the complainant representative with their written submission prehearing. I was grateful to the Respondent when they furnished this document to me at hearing. I took a break of 30 minutes to consider the document

The Respondent has operated the Choice Based letting scheme since November 2015. The complainant is qualified to secure social housing.

The scheme is adapted to accommodate medical needs.

Ms Horgan confirmed that the Complainant had been on the housing list from 2000. This was recalibrated following an Ombudsman review.

The circumstances of this status have varied over the years. Their application has been open and closed a number of times since they first applied, primarily for non-response to periodic statutory reviews

The composition of the family unit has altered over the years as family members joined the housing list in their own right and the family has been sanctioned for a 3-bed property in respect of those changes. At present the family is approved for a 2-bed property in respect of the updated reconfiguration to the complainant, her husband and their two sons

The Complainant used CBL only once in pursuance of the bungalow.

The Respondent is actively addressing securing suitable accommodation for the Complainants family but had experienced some difficulty in getting the Complainant to return the HMD form 1 (introduced nationally in April m, 2021) This allows for a closer analysis of disability or medical conditions on housing needs. At any one time 15% of clients on the housing list have stated medical/ disability needs. The stock of bungalows or adapted properties is low.

The Respondent referred to an application for housing made by the complainant in September. 1998, prior to the introduction of the national software system in 2006. The Respondent submitted that they believed the file was closed for a number of years but could not be certain. They added that the file was re-opened in December 2006 and reflected the original credit date of September 1998 but was closed in 2011 due to a non-response to the 2011 statutory housing assessment review.

A new application followed in November 2011 and was marked as the new basis for credit time. The application was closed in December 2020 following a hand delivery of the letter and form to the family by the Traveller Accommodation Unit as proof of income was not submitted.

The application was reopened from June 2021 and remains active.

The credit review was reconciled following a commitment given by the Respondent to the Office of the Ombudsman for children in terms of residents of Spring Lane.

Ms Horgan outlined the philosophy of CBL and the objective of autonomy for bidders over the location of properties. Average waiting time for a social house in the respondent catchment area is approximately 8 years and household composition are an ongoing concern to ensure that housing stock is “neither overcrowded nor underutilised “

There are two parallel allocation processes. Bungalows are generally allocated outside CBL

1 CBL for standard housing units

2 Needs based process for older persons and those with a specialist housing need

In the instant case, Ms Horgan outlined that the 3 bed Bungalow at the centre of this case had a very steep driveway adjacent to a busy road and was placed on CBL system on 30 September 2020.The Respondent exhibited the bungalow and its gradient in their book of documents at hearing.

At that time, the Complainant was qualified for a standard 4 bed property based on a family composition of the couple, two adult daughters and three younger children.

The Complainants bid reflected a reconfiguration of the family to 2 adults and three children on 30 September. This concerned the respondent as the two family members removed in the process were not active participants on the housing list. The Traveller Accommodation Unit subsequently forwarded application forms to both.

There were 985 expressions of interest submitted during bid week. The 3-bed bungalow was allocated on foot of

1 assessment of housing need of all applicants

2 the priorities outlined at the Allocation service

3 Representations made by TAU

4 Urgent housing need

This has been the sole bid made by the complainant through CBL and they were placed 131 in the bidding outcome. Ms Horgan and Ms Dennehy both contended that the TAU are actively engaging with the Complainant and his  family. Two properties offered outside the CBL process in respect of difficulties following the covid 19 pandemic were declined.

Evidence of Mr Ahern, Staff Officer:

Mr Ahern outlined the CBL scheme and recalled the CBL bidding process, which prevailed in this case. He outlined that the property was allocated based on the highest need and supported by “an extremely detailed submission “, external references and letters of support.

He explained that the CBL bidding prefaced the “human decision “of allocation. He confirmed that the successful tenants were Traveller background.

In cross examination, Mr Ahern confirmed that he believed that there were 985 applicants by the could not be certain. He confirmed that homelessness, or Traveller status were not defined categories in CBL.

He was unaware if CBL permitted a transfer of time spent on the waiting list.

He confirmed that the category of Traveller did not have priority status at CBL.

In clarification, Mr Ahern confirmed that he had not received specific equality training.

He clarified that priority for housing via the Allocation scheme was “Category B, homeless “He confirmed that the Complainants application for housing would be kept under consideration.

CBL did not host an appeal system.

 Evidence of Ms Lisa Horgan, Administrator

Ms Horgan outlined that the Respondent operated through the Social Housing Regulations of 2011. She confirmed that the Complainants credit review had been fixed in 1998.

She outlined that the Respondent had offered 985 houses during 2021 and 241 of those had been refused. she said that very few bungalows became available and were not normally allocated through CBL. There were 12 representations from TAU for the house at the centre of the CBL bid

The Complainant had not specified her medical needs through her application via the HMD1 form. Ms Horgan confirmed that the TAU had met with the Complainant.

During cross examination, Ms Horgan addressed the reason why files are closed on the housing list. She said 800 files were closed annually following systemic review

She confirmed that the credit review had been reconciled following the intervention of the Ombudsman and also confirmed that the Equality Review was “underway “

Ms Horgan agreed to set out how many of the 985 houses had been allocated to members of the Travelling community. I did not receive a follow through on this.

Ms Dennehy for the TAU addressed the hearing on the Council plans for Spring Lane via a 5-year plan 2019-2024. The plans were underway for Group Housing aimed at resolving a housing need for the Spring Lane Residents.

I did approach the Complainant if she wished to take a 4-week adjournment to consider this option further, but this was not availed of.

In closing remarks, the Respondent denied discrimination. The house was allocated via the allocation section with personal representation from TAU. The Complainant was not the longest on the housing list.

The Respondent undertook to furnish a recently completed Equality Report which arose from the decision made in ADJ 18849. They undertook to submit the completed CBL form in the Complainants September 2020 application, confirmation of how many properties were allocated to Travellers, the Ombudsman for Children report, and the foundation application made by the complainant for housing.

They also agreed to forward the amended waiting list record for CBL scheme for the Complainant.

I have been requested to make a decision in this claim for discrimination on grounds of membership of the Travelling Community

I think it is both relevant and important that I set out the documents submitted by the Parties to demonstrate the depth of the sustained Public Policy interest in both Spring Lane Halting site and the individual role played by the complainant and her family in pursuance of housing in the case.  There are both macro issues of Public Policy and micro issues of access to social housing at play here. I found that I had to read into and consider both in my investigation.

1 No End in Sight, Ombudsman for Children, May 2021.  11 families on Spring Lane

2 Account of the Equality Review by the Respondent in respect of Traveller Specific Accommodation ,2020

3 Extensive photographs of the property at the centre of the bid “the bungalow”

Extensive photographs of the replacement mobile homes proposed post Storm Ellen destruction accepted on September 4, 2020, and availed of pre-Christmas 2020.

4 Copy of the Ombudsman Response to the complaint on behalf of 11 families and the next steps

5 Details of CBL, allocation scheme, Social Housing Regulations, Offers made to allocate housing and refusals of offers

5A Housing Welfare Officer Referral 31 March 2003. Application for Housing signed by the Complainant 24 November 2000 and date stamped by the Council 26 November 2000.

6 ADJ 18849 and ADJ 30990, September 2020, canvassed by the Complainant

7 Medical reports, alongside a vacant HDMI form,

8 extracts from the CBL record of bidding which recorded the successful family having a composition of 2 adults and 4 children. The credit date and housing need category was redacted, but TAU Rep was appended for the record for the successful tenants.

This case centres around the Complainants experience with the Respondent Choice Based Letting Scheme (CBL) It is common case that this bid was the sole bid made by the Complainant on this scheme.

I must decide whether the Respondent has discriminated against the complainant on the basis of his membership of the Traveller Community. Mr Eblosh introduced a notional Comparator at the outset of the hearing.

Role of the Parties:

I found that the Advocates for the Complainant were focussed on developing the pathway to housing as a right and as a means of escape from their declaration of unsustainable mobile home accommodation in Spring Lane Halting site. I found that the complainant has benefitted from strong focussed advocacy which is enduring.

In this case, the Respondent is covered by the Positive action measure contained in section 6(6) of the Act the Respondent has also relied on Section 22 of the Housing (Miscellaneous Provision) Act, 2009 and SI 198/2011 on Social, Housing Regulations.

In the book Equal Status Acts 2000 -2011, Judy Walsh at 10.3 page 301 outlines the scope of this Positive Equality duties when she says:

“Generally speaking, positive equality duties require duty bearers to proactively identify and address unlawful discrimination. Organisations may also be required to institute policies or practices that promote equality of opportunity. These measures potentially address the limitations inherent in the individual enforcement model as they do not rely on a victim of discrimination coming forward and are designed to prevent discrimination arising in the first place”.

Section 6 defines the scope of prohibited conduct in terms of disposal of premises and provision of accommodation.

Disposal of premises and provision of accommodation.

Section 6(1)

. — (1) A person shall not discriminate in—

(a) disposing of any estate or interest in premises,

(b) terminating any tenancy or other interest in premises, or

(c) subject to subsection (1A), providing accommodation] or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c) is without prejudice to—

(a) any enactment or rule of law regulating the provision of accommodation, or

(b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.

Section 6(6) outlines a Positive action measure

(6) Nothing in subsection (1) shall be construed as prohibiting—

(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or

(b) a body approved under section 6 of the Housing (Miscellaneous Provisions) Act, 1992,

from providing, in relation to housing accommodation, different treatment to persons based on family size, family status, civil status, disability, age or membership of the Traveller community.

 I have identified   that the Respondent operated a fragmented and disjointed service in terms of allocation of social housing to the Complainant.

I would have much preferred to have seen a uniform system in operation.

I grasped the role early on of the TAU, which I found very clear. I found an opaqueness between TAU and Allocations at the Council. I learned that CBL acts as a Preliminary Screening exercise followed by Oral Advocacy from the City Council. Allocations then seemed to have the last say in terms of formulation of offer. I learned of a number of initiatives aimed at housing Travellers, all of which had passed the complainant by to date. I learned of a fragmented record of tenure on the housing list from the complainant’s perspective, interrupted as it was by inaccurate records of time, but also following the delay in her complying with the statutory reviews. I was troubled by a declaration made by the Respondent in the Ombudsman report when they declared that there were no inaccurate time records. I accept Ms Harringtons evidence when she recounted the efforts made to address the inaccurate records from 2019 onwards in this case. This resolved fully in June 2022.

I had a sense of unease surrounding a lack of a specific Housing file for the complainant as I had to continue to seek a chronology for her applications for housing. It struck me as unusual that a CBL scheme so highly reliant on accurate records would be superimposed on such a frail administrative record, such as was presented in this case. This must result in a high margin for error and dissatisfaction.

I fully accept the evidence of Louise Harrington, when she outlined the arduous measures undertaken in relation to reconciling the record of accurate dates of placing on the housing list for credit review.

 I can only suggest, at this stage that the Respondent prioritises accuracy in terms of feeding applications into CBL or at the very minimum to allow an applicant to edit the record in real time. I took from Ms Harrington, just how disappointed both she and the complainants were in the case when they honestly believed that they had not been judged based on an accurate record of tenure. This is a very important point and points to a systems failure. I also accept Michael Mc Carthys evidence when he reflected the inaccurate record but was unable to adjust it as he made the application in this Parents name.

The Complainant referred me to a former WRC decision in ADJ 18849 This was a case raised on different facts, but which resulted in an order made on July 2, 2020, under the Equal Status Act   on this same Respondent

. I order the respondent to engage in a review of CBL scheme to achieve Equality Proofing within 3 months of this decision and to implement any recommendations which may follow this review within 6 months of their pronouncement.

On one level, I was pleased that the Respondent had acted on this component of a WRC Decision, a case in which I was involved.

 On the other hand, I was very disappointed to learn that the Equality Proofing of CBL had not been confirmed to date. The Respondent submitted that a study had been commissioned at Third Level and was presently before the City Council for sign off. Assurances that the completed document would be shared with me did not materialise up to and including 5 months post this hearing. I found this very disappointing.

Having heard from the Respondent Representative in addition to her colleagues from the TAU, I have a deep sense of unease surrounding CBL in terms of Equality proofing. This is a system based on Artificial Intelligence, which has allocated 1,596 properties since November 2015 for the Respondent and which appears to have a subjective   adjunct of advocacy, where:

“Representations are received from sections of the City Council, from external agencies, advocacy groups, and political representatives “

City Council Presentation to Traveller Visibility Group, June 2021

 I am mindful that in early 2020, the EU Commission recognised in the preamble White Paper on artificial Intelligence that AI “entails a number of potential risks including gender based or other kinds of discrimination “

CBL is not regulated.

I am mindful of the lea way and discretion invested in the role of the Respondent in allocation of housing. I am mindful that I have no role in interfering in the way the Respondent allocate houses. However, my Jurisdiction is directed at whether Prohibited conduct has occurred in accordance with social housing distribution in relation the Equal Status Act, 2000

 I would have liked to have considered the Equality Review of CBL in terms of any potential interface with the overarching facts of this case.

It is the role of the complainant to establish prima facie evidence that discrimination has taken place, if the Respondent continues to hold out on a demonstration of Equality Proofing, it is arguable that a complainant in future cases may face hurdles or obstacles in complaint progression.

My impression of CBL is that is that it is the first step in housing allocation and is followed by a representation stage prior to the eventual decision. It is not visibly governed by a Policy.

 I had the benefit of reviewing the variance in the adjunct advocacy recorded in both the successful family of 2 adults and 4 children in this case and that recorded in the complainant’s case. I had difficulty in this process as it was not published or transparent.

Crucially, there is no appeal mechanism in CBL. The Complainant viewed a complaint under the Equal Status Act, 2000 as her sole avenue to register her dissatisfaction for being overlooked for the house she really wanted. I would much prefer if the Respondent ran an internal appeal system as best administrative practice at first instance.

 I have concerns that the incomplete review of CBL may be placing an unwelcome delay in firming legal safeguards in respecting the fundamental right to equality. 

Has the Complainant reached the Burden of Proof required in the case?

I move now to considering whether the burden of proof has been met in the case?

Burden of proof.

38A.— (1) Where in any proceeding’s facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

A prima facie case of direct discrimination establishes three things on the balance of probabilities

1 the complainant is covered by the relevant discriminatory ground

2 there was specific treatment by the respondent

3 the treatment of the complainant was less favourable than the treatment that was or would have been afforded to another person in similar circumstances

In the instant case, there a number of very important first steps set down in Section 21 of the Equal Status Act, 2000

Redress in respect of prohibited conduct.

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

(1A) If the grounds for such a claim as is referred to in subsection (1) arise—

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission] under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).]

(2) Before seeking redress under this section, the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.]

I am satisfied that the ES1 form lodged by the Complainant in this case was wholly complaint with his obligations under Section 21(2) of the Act I would have preferred to see the ES1 served on an individual basis rather than conjointly and I would have preferred to have signed copies. However, I accept the printed names version submitted.

The Respondent failed to pick up on this complaint in ES1 format. While I appreciate that the covid 19 pandemic was live and challenging for all public bodies at that time, I found that the Respondent erred in not having a system in place to manage complaints of this nature. I conclude that the Respondent is a Public Body and ought to have addressed the ES1 and the very pertinent questions therein. At hearing, the Respondent apologised for the oversight and explained that the service had experienced staff changes, which have since stabilised.

I find that the failure to address this complaint in real time by informing the Complainant that the successful family had a Traveller profile and background was deeply disrespectful and regrettable.

I found in papers submitted that the Respondent was apprehensive on how the complainant and her family would receive the information on the successful family. However, this did not form part of Ms Lisa Horgan’s submissions at hearing. I found the Complainant was kept in the dark on the identity of the successful tenants until the hearing day in this case. That should not have happened and raises serious questions on the nature of communication arising from the CBL process and just how this process is evaluated or reviewed.

While the Complainants representative accepted that the successful tenants had a Traveller background at hearing, I found he would have preferred to have been made aware during the lifetime of the ES1 form during November -December 2020 as he may not have wished to advance the complaint on that basis beyond ES1 stage.

The Respondent did not have a cogent reason for missing out on the ES1. This amounts to a significant systems failure on the Respondents behalf. I found a parallel occurrence in the case the Complainant requested me to review in ADJ  30990 when my colleague, Catherine Byrne outlined a very similar pathway for an ES1 lodged with Cork City Council

 It is a concern that Ms O’Reilly did not get a reply to the ES1 she sent to the Chief Executive of Cork City Council on October 14th, 2020.  I assume that the reason was because the family was placed in one of the Council’s long-term lease properties around that time.  However, none of the questions in the ES1 were answered, with the result that, two months later, Ms O’Reilly submitted this complaint to the WRC.

In the instant case, the Complainant had a very trying Autumn where her Mobile home was storm damaged and a delay followed its replacement. The CBL bid occurred during this period.

It may now be timely and helpful for the Respondent honour its positive duty by putting administration measures in place immediately so as to avoid any ES1 or its equivalent slipping from view at any time in the future.

It may also be timely for the Parties to engage on agreeing the medical documentation needed to support an application for social housing and anticipated periodic reviews .

As both the Complainant and one member of the successful tenant family were members of the Traveller Community, I cannot find that the Complainant was treated less favourably than someone who shared the same Traveller grouping with him.

However, I have identified a pronounced systems failure in the manner in which the complainant’s application for social housing was managed through the CBL system and beyond.

The process was lacking in respect and dignity and disclosure of key information at key intervals.

While I understand that the Respondent is seeking the application of Section 6(6) of the Act, I found that the CBL application, communication of results, reconciliation of the time spent on the waiting list in addition to the avoidance of any response to ES1 amounted to a pronounced systems failure which needs immediate review. It is not lost on me that this Halting Site is the subject of ongoing parallel Ombudsman scrutiny and reportage.

The Complainant has not met the required burden of proof in the case and his claim of discrimination on grounds of membership of the Traveller Community is not well founded.

Addendum to the Case:

On October 21, 2022, whilst awaiting sight of the CBL Equality Review undertaken by the Third Level Institute, Ms Dennehy from TAU kindly sent me an update on the Complainants engagement with the Council on a “permanent housing solution “She outlined that a firm design for a Housing scheme by consensus was now in place for 15 families at the Halting Site. This plan would be subject to approval from a number of bodies.

This document was shared with the Complainant and one week later on 28 October 2022, Mr Eblosh responded accepting Ms Dennehy’s progress report in fact but took issue with the critical needs which had prompted the change and cautioned that realisation of the scheme could in reality be “several years away “.

I have catalogued this progress report back to the Parties to commend the commencement of this work at the very minimum. I wish the Parties a speedy progression of this mutual project.

It does not form part of my decision but is a useful addendum.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I find that the Complainant has failed to establish a prima facie case of discrimination on the Traveller Community ground in terms of Section 3(1) and 3(2)(i) of the Equal Status Acts.

Complaint of discrimination on access to social housing on Traveller grounds